Neutral Citation Number:  EWCA Crim 1079
IN THE COURT OF APPEAL
Royal Courts of Justice
London, WC2A 2LL
Tuesday, 9 June 2015
B e f o r e:
LADY JUSTICE RAFFERTY DBE
MR JUSTICE WILLIAM DAVIS
THE RECORDER OF BIRMINGHAM
HIS HONOUR JUDGE INMAN QC
(Sitting as a Judge of the CACD)
R E G I N A
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Mr M Scott appeared on behalf of the Applicant
Mr J Hallam appeared on behalf of the Crown
J U D G M E N T
LADY JUSTICE RAFFERTY: On 6th October 2014 in the Crown Court sitting at Winchester Stephen Peter Gough, 56, was convicted of breaching an Anti social Behaviour Order, colloquially known as an ASBO, contrary to section 1(10) of the Crime and Disorder Act 1998 and sentenced to 30 months’ imprisonment. He had been unrepresented. He had told the court that he wished to represent himself, but as a consequence of his refusal to wear any clothes at all in court he was tried in absentia.
By leave of the single judge he challenges the safety of his conviction. The Registrar referred to this court an application for an extension of four months so as to seek leave to appeal against sentence.
On 13th August 2013 the applicant was made subject to an Anti social Behaviour Order which prohibited him from appearing in public without clothing to cover his genitalia and buttocks. At its imposition he was serving a prison sentence from which, on 15th April 2014, he was released, naked save socks and boots. He had declined the offer of clothing. He was arrested immediately outside prison. Interviewed under caution he asserted as a reasonable excuse for his nakedness that he did not agree with the contents of the Order so was not prepared to obey it.
At the close of the case for the Crown, the judge was handed a letter from people in the public gallery which included concerns that the jury was denied knowledge of matters the author suggested were of some significance. They included that nudity was no crime; that Gough had spent some eight years in jail already; that guidelines on public nudity seemed at odds with the harshness of his treatment; and that he held a sincere and deep belief in the philosophical approach to living life naked.
His case was that since he considered the Order wrong, his refusal to abide by it provided him with a reasonable excuse. He suggested the Order was not reasonable. He sought to live his life following his own reason and with integrity. He was not prepared to accept that he should simply follow what someone else said merely because that someone was in a position of authority. He sought to appear in court naked so as to support his own case, as evidence of the appearance of his body in a public place.
The issue was reasonable excuse for breach.
There was on the nursery slopes of the trial dialogue about whether if he were in court he would sit or stand. We are grateful to Mr Scott (who did not appear below) for explaining to us that any point arising from it falls away. By videolink from prison today he sat unclothed from the torso upwards, his lower body obscured by a table. For all we know he was clothed other than above the waist.
He confirmed before his trial began that he took no issue with the case for the Crown, nor did he want to take up the judge on her offer to put questions on his behalf were he not in court. He had no objection to content of the note from the public gallery which we have summarised and he firmly declined to put on clothes so as to present to the jury his own case.
The Crown suggested to the judge that he had had every opportunity to participate in the discussion of his presence during the trial and as a consequence of his unwillingness to put on clothes she was entitled to be satisfied that he was unable to participate. She gave him a final opportunity to appear clothed which he rejected. He was explicit that he understood the consequences.
Sentencing him, the judge said that whilst there was a guideline of assistance on breach of Orders, this was a wholly exceptional case. The Applicant had flagrantly breached the Anti social Behaviour Order. If there were a way out of the cycle of endless prison it should be found, but at the moment she saw little option but imprisonment.
Born on 13th May 1959, Gough had 30 convictions comprising 48 offences committed between 2003 and 2014, predominantly breaches of public order or failing to comply with Court Orders. His first custodial sentence was three months’ imprisonment in 2004 for breach of the peace. In June 2013 he was sentenced to 48 weeks’ imprisonment (upheld on appeal) and in January 2014 to 16 months for breaching Anti social Behaviour Orders.
In grounds of appeal against conviction, the first complaint is that the judge fell into error in excluding the appellant from his trial when he confirmed his wish to appear naked. His nakedness was not likely to interfere with the proper course of the trial. The judge should have been slow to set conditions about how he should dress. Requiring him to dress had a powerful effect on the ability of the court to deal justly with the case, contrary to the over riding objective, and it impeded his participation. Even were she right to insist that he should not be naked, the judge failed to consider other options falling short of exclusion from the court.
Finally, and advanced with a lighter touch, were criticisms that the judge failed to give sufficient weight both to the applicant’s right to a fair trial under Article 6 of the European Convention on Human Rights (“the Convention”) and to manifest his belief under Article 9.
As to sentence, the complaint is that no serious harm was caused by the breach which was brief in time, harmed no one and was not characterised by evidence that any member of the public was there to observe in any event. The only certain observers were police officers waiting. Consequently the sentence was not commensurate with the seriousness of the breach. The sentence was double the length of the last sentence. Lengthening periods of imprisonment are pointless, excessive and oppressive. The applicant’s right to freedom of expression under Article 10 of the Convention is engaged and a significantly shorter sentence would have met the justice of the case.
The respondent Crown argues that the judge’s decision on nakedness was reasonable and lawful. She had a discretion to exclude a defendant who did not conduct himself decently: Jones (Anthony)  1 AC and Gough (this Appellant)  EWCA Crim. 1418. The purposes of requiring the him to dress included ensuring respect for the court and protection for the jury or the public from shock or offence. Strasbourg jurisprudence, the Crown submits, does not suggest a criminal trial, absent a defendant, is inconsistent with the Convention. His Article 9 right to manifest his belief is unlikely to extend to refusing to wear clothes in public. If, which is not admitted, it were engaged the Crown suggests the refusal to allow him to appear naked in court was a response both necessary and proportionate: Gough v United Kingdom (49327/11).
In our judgment, were the Appellant to have appeared naked in front of the jury it would have been a further breach of the Anti social Behaviour Order and that is the end of the argument. That a court should contemplate concurrence with the commission of a criminal offence during proceedings is a bizarre notion and, without more, fatal to the Appellant’s submissions. The suggestion that the judge “ought to have been very slow, in the absence of any disruptive behaviour, to set any conditions about how he should dress” misses the point. The judge could not with propriety have put herself in the position of agreeing to the commission of a crime. The Anti social Behaviour Order was in place and it prohibited behaviour the applicant sought to legitimise.
The judge’s rejection of the suggestion of an ad hoc arrangement involving a screen, or perhaps more accurately the absence of consideration of such, does not render her decision irrational. An appearance in court was always open to the applicant. Had he clothed himself he could, as he and all those listening knew, have come up and taken a part or no part in proceedings. That he opted by his response to the court’s inevitable ruling to stay out of court was his decision. He cannot now hope that his complaint about the consequences he set in motion will succeed and it does not.
Was the trial unfair? He had no challenge to the Crown’s evidence. His case was that he had a reasonable excuse to breach the Order. The judge’s direction in the summing up, that in law he did not, is unimpugned and unimpugnable. She judge did not direct the jury to convict. That is why this is not a case in the same category as Wang  UKHL 9;  2 Cr.App.R 8 where the judge did impermissibly so direct the jury. It was always open to this jury, should it choose, to return a verdict which was not adverse to the appellant. The jury had his argument, foreshadowed in interview and appropriately summarised by the judge. Any consequences of an inability to advance a case in person he had elected to visit upon himself. As we have made plain, he was entitled to advance his arguments orally so long as he abided by the terms of the Court Order and behaved appropriately in the court setting, conditions which, on these facts, are in harmony.
He wished to flout an Order of the Court and thus, by his own decision making process, detached himself from proceedings and he knew before he did so what the outcome would be.
The Divisional Court has already considered whether the imposition and/or the terms of the Anti social Behaviour Order were disproportionate, the President of the Queen’s Bench Division presiding. The European Court of Human Rights has reviewed the effect of prosecutions of the Appellant in Scotland for breach of the peace. Where relevant its judgment reads:
“176. … [the] applicant’s imprisonment is the consequence of his repeated violation of the criminal law in full knowledge of the consequences, through conduct which he knew full well not only goes against the standards of accepted public behaviour in any modern democratic society but also is liable to be alarming and morally and otherwise offensive to other, unwarned members of the public going about their ordinary business. … the reasons for the measures adopted … were ‘relevant and sufficient’ and … met a pressing social need in response to repeated anti social conduct by the applicant. It cannot be said that the repressive measures taken in reaction to the particular, repeated form of expression chosen by the applicant to communicate his opinion on nudity were, even if considered cumulatively, disproportionate to the legitimate aim being pursued, namely the prevention of disorder and crime. In particular, Article 10 does not go so far as to enable individuals, even those sincerely convinced of the virtue of their own beliefs, to repeatedly impose their antisocial conduct on other, unwilling members of society and then to claim a disproportionate interference with the exercise of their freedom of expression … ”
The appeal against conviction is dismissed.
We turn to the application for an extension of time, which we grant, for leave to appeal against sentence. Although we acknowledge that two and a half years for breach of an Anti social Behaviour Order might, absent narrative, appear manifestly excessive, this case must be read in context. That context reveals that it is the persistence of the conduct which leads to longer and longer sentences. The applicant had 26 previous convictions and a history of failure to comply with orders of the court. Additionally, he chose to breach his Anti social Behaviour Order immediately upon release from prison. No guidelines were likely to assist the judge in these unusual circumstances, as she rightly identified. A combination of those factors we have identified more than justifies the course she adopted. Consequently the application for leave to appeal against sentence is rejected.